### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-31092 Summary Calendar

MATTHEW EARLE PROVENSAL, Plaintiff–Appellant.

versus MICHAEL JOHN GASPARD; H20 HAIR, INCORPORATED, Doing Business as H20 Spa and Salon, Defendants–Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana

No. 2:10-CV-4276

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: *

Matthew Provensal, a former employee of H2 0 H air, Inc. (“H20 Hair”), U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May15, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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sued H 20 Hair and his s upervisor, Michael Gaspard, alleging Title VII and Louisiana s tate law claims based on sexual harassment. The claims were dismissed, and the c ourt granted c osts a nd attorney’s fees to H 20 Hair and G aspard on a finding that the s uit was frivolous. Provensal appeals only the award (and not the amount) of the costs and fees. We affirm.

I. While working for H20 Hair a s a massage therapist, Provensal filed a complaint with the EEOC and, after receiving p e rmission to sue , he filed a district-court c omplaint i n which he vaguely alleged that he had been the victim of discrimination based on h i s sex and religion. He claimed that G a spard had demanded personal massages, had exposed himself to Provensal, and had promi s e d t o make Provensal a “head therapist” and get h im extra money if he gave Gaspard more personal massages. Provensal a lso a lleged, with no p articularity

or supporting facts, causes of action for f ailure to create a workplace free of discrimination, s la n der, d efamation, intentional infliction of emotional distress (“IIED”), and other violations of state law. H e requested damages of $1 million for emotional distress, economic l osses, physical injuries, and “loss of civil rights.” He also requested punitive damages and costs. 1 The court dismissed parts of the compl a int, beginning with s tate-law claims that P rovensal conceded did not s tate a claim upon which relief could be granted. Eventually e ach c laim was di smissed either under Fe d e r a l Rule of Civil P rocedure Rule 12(b)(6) or on a motion for summary judgment. P rovensal

was not able to present any evidence that he had received a promotion or demotion or any change in his wages while at H20 Hair. In h is deposition, he did not

1 Provens al am end ed his com p laint af ter H 20 H air res pond ed w ith a m otion to d is m is s or f or a m ore def

inite s tatem ent und er Fed eral Rule of Civil Proced ure 12(b) (6) and ( e)

. The am end ed com p laint ad d ed little d etail. 2 Case: 12-31092 Document: 00512242448 Page: 2 Date Filed: 05/15/2013No. 12-31092

explain how Gaspard had harassed him beyond undressing in f ront of h i m , as

m a ny customers did, a nd becoming sexually a roused during the massage, which , as Provensal admitted, was reasonable to expect during a thigh massage. After dismissing a l l t h e claims, th e court a ddressed H20 Hair and Gaspard’s m otions f

or costs and attorney’s fees. The court undertook a careful analysis of reaso nable f

e es and the actual time spent o n each i s sue and included those calculations in the o r der and reasons. The court reduced the fees considerably from the amounts initially claimed.

I I. We review an award of c o s t s and attorney’s fees for abuse o f discretion. Jason D.W. by Douglas W. v. H ous. I ndep. Sch. Dist. , 158 F.3d 205, 208 (5th Cir. 1998). A court “ a b u s e s i t s discretion when its ruling is b ased on an erroneous view of the law or a clearly erroneous assessment o f the e vidence.” United States v. Yanez Sosa , 513 F.3d 194, 200 (5th Cir. 2008) (quotations omitted).

III. Costs and a ttorney’s fees may be awarded under Federal Rule of Civil Procedure 54 a nd 28 U.S.C. § 1920 and, in Title VII cases, are explicitly made available and relegated t o the discretion o f the court. 42 U.S.C. § 2000e-5. They are awarded differently, however, based on the identity of the prevailing party. A prevailing plaintiff g enerally ough t to recover attorney’s f ees. Christiansburg Garment Co. v . EEOC, 4 34 U.S. 412, 417 (1978) (applying to Title VII the Piggie Park standard of Title II, under which the default position is that a prevailing plaintiff recovers attorney’s fees). A prevailing defendan t , o n the other hand, should recover fees only where the “court finds that [the p laintiff’s] claim was frivolous, unreasonable, or groundless, or that the p l aintiff continued to litigate after it clearly became so” or that the plaintiff brought a claim in b ad faith. I d

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at 422. Claims d o not need to be “airtight” to avoid being frivolous, and courts must be c areful not to use the benefit of perfect h indsight in assessing frivolousness. Id

. at 421–22. Factors include “whether the plaintiff established a prima facie c ase, whether the defendant offered to settle, and whether the court held

a full trial.” M

yers v. City of W. Monroe , 211 F.3d 2 89, 292 (5th Cir. 2000). These factors a re “guideposts,” a nd frivolousness must be judged o n a case-by-case basis. See Doe v. Silsbee Indep. Sch. Dist. , 440 F. App’x 421, 425 ( 5th Cir. 2011) (per curiam). Where a claim is “so lacking in m erit” as to render it groundless, it may b e classified a s frivolous. United States v. Mississippi , 921 F.2d 604, 609 (5th Cir. 1991). The district court, per the magistrate judge serving by consent, c orrectly applied our standard when determining frivolousness. T h e c ourt opined that “the c laims for r eligious discrimination, s lander, and defamation had no colorable basis in fact or law , t h e claims for [ IIED] were clearly prescribed [sic], and the federal and state e mployment claims against Gaspard were patently meritless because Gaspard was not plaintiff’s employer.” We consider briefly each of these claims. The decision regarding the frivo l o u s n e s s of Provensal’s claims for religious discrimination, slander, and defamation is reasonable. Even in his complaint, Provensal‘s claims stand out a s ungrounded in law a nd fact. He did not explain his religion or how he had been discriminated against on that basis. He did not allege a single specific incident of slander or defamation. He f ailed even to point to any negative statement Gaspard or H20 Hair had made about him. P rovensal did not n ote any o f the legal requirements of these c l a i m s . F inally, in his response to Gaspard a n d H 2 0 Hair’s motion to dismiss, Provensal agreed that those three claims s hould be dismissed

. They were meritless from the start, and Provensal is u nable to explain even n o w how they were not frivolous, beyond

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vague notions of our lenient pleading standards. That does not suffice. The determination that the claim for I IED was frivolous was a lso reasonable. The court concluded that the claim was p r oscribed under the r e levant statute of limitations and was therefore frivolous. Provensal concedes that the claim

was time-barred; h e e ven goes as far a s to argue that it was so clearly timeb arred that H20 Hair a nd Gaspard’s lawyers should have asked for dismissal earlier

—he maintains that Gaspard’s fail u r e to have the claim dismissed was his counsel’s invidiously inflating the cost of litigation. In appropriate cases, we have h e ld that time-barred s uits a re m eritless and properly deemed f

rivolous. See Pope v. MCI Telecomms. Corp. , 937 F.2d 258, 267 (5th Cir. 1 991). The court reasonably determined that the IIED c laim was frivolous. Finally, the Title VII clai m s a g ai n s t G a s p ard w ere correctly deemed meritless and frivolous. Title VII does not impose liability on individuals unless they

are “employ ers.” See , e .g. , Grant v. Lone Star Co. , 21 F.3d 6 49, 653 (5th Cir. 1994). Gaspard was not a n e mployer and therefore c ould not be sued in his individual capacity under T itle VII. That f a c t was obvious from the outset. The court again correctly concluded that the claim was frivolous. 2 AFFIRMED.

2 Even if only a subs et of the claim s w as f rivolous , it w as s till w ithin the d is cretion of the court to grant cos ts and f ees on that s ubs et. See Fox v . V ice , 131 S. Ct. 2205, 2214 ( 2011)

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